King v. Libbey

Winboene, C. J. The sole assignment of error on this appeal is predicated upon exception to the ruling of the trial court, — sustaining the plaintiff’s demurrer to defendants’ counterclaim as set up in their answer. This raises the question as to whether or not the counter-claim states two or more causes of action. Paraphrasing Land Co. v. Beatty (1873) 69 N.C. 329, opinion by Rodman, J., quoted in Heath v. Kirkman, 240 N.C. 303, 82 S.E. 2d 104, on examining the counterclaim in the present action we find that it does not profess to state more than one cause of action. If in fact it states two it would be demurrable, because it compounds and does not state them separately. Then this Court in opinion by Bobbitt, J., in the Heath case, supra, states in summary this rule: “Unless the contrary plainly appears, it will be assumed that a complaint that does not set forth separate statements of more than one cause of action, is intended to allege a single cause of action and that intimations of other causes of action are mere embellishments and not germane to the cause of action constituting the heart of the complaint.” In the case in hand it seems clear that the defendants’ counterclaim states facts sufficient to constitute a cause of action for injuries to their home and to the furnishings therein. Applying the rules as stated in the Heath case, only one cause of action is alleged in the counterclaim— that stated above. The question then arises as to whether the cause of action alleged affects all parties. The answer is in the affirmative. Both defendants have a common interest in the relief sought and do not demand a separate recovery therefor. See Heath v. Kirkman, supra. Moreover it is provided by statute in this State, G.S. 1-137, that “the counterclaim mentioned in this article must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of [191] the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action * * Indeed if it arises out of the same transaction or is connected with the subject of the action, a tort claim may be pleaded as a counterclaim against a contract claim, that is, under Section 1, above, a cause of action ex delicto may be pleaded as a counterclaim to an action ex contractu provided it arises out of the same transaction or is connected with the same subject of action. See Hancammon v. Carr, 229 N.C. 52, 47 S.E. 2d 614. In the light of these principles, this Court is of opinion and holds that the trial court erred in sustaining the demurrer filed herein, and that the judgment below should be, and is Reversed.